REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT NYAHURURU.
PROBATE & ADMNISTRATION
HCFPA 092 OF 2019.
IN THE ESTATE OF WANGUI WAKAHE alias BETH WANGUI KAHE [DECEASED].
TERESIA WANJIRU MWANIKI-------------------------------------------------1ST APPLICANT
THOMAS MAINA MWANIKI---------------------------------------------------2ND APPLICANT
JOHN NGUGI NGANGA--------------------------------------------------------3RD APPLICANT
-VERSUS-
CHARLES MACHARIA MAGONDU-------------------1ST ADMINISTRATOR / RESPONDENT
DANIEL WAKAHE MAGONDU ------------------------2ND ADMNISTRATOR / RESPONDENT
STEPHEN MUTHIMBI KARIUKI & 32 OTHERS-------------------------------RESPONDENTS.
APPLICANTS' SKELETAL SUBMISSIONS IN SUPPORT OF THE APPLICATION DATED
23.05.2024
YOU’RE LORDSHIP
Introduction
1. The Applicants seek to vacate the Consent Orders allowing the demarcation of Estate property
in favor of the 33 Respondents claiming purchasers' interests, on grounds of lack of locus
standi, res judicata, and the Court being functus officio.
2. The impugned Consent Orders aim to include 33 intruders and/or strangers who have illegally
occupied the Estate, disrupting its distribution as per the confirmed Grant. These Orders were
obtained through collusion and misrepresentation to circumvent prior Orders declining the
recognition of these intruders and/or strangers claiming purchasers' interests as beneficiaries.
3. The Administrators have facilitated the decade-long intermeddling and wastage of the estate
by strangers. Additionally, the Administrators breached their fiduciary duties by entering into
Consents without full disclosure and authority from all beneficiaries, necessitating the
annulment of the Grant of Representation and the issuance of a fresh grant jointly to the 2nd
and 3rd Applicants.
4. Notably, the 1st Administrator has acted unilaterally in the administration, excluding the co-
administrator. He did not attach any authority or affidavit in support from the co-administrator
in the Summons for rectification of the grant dated 29.12.2016 and in the Replying Affidavit
dated 29.05.2024.
5. Furthermore, all proceedings by the Counsel purporting to act for the 1 st Administrator are
fatally defective for want of authority as there is no proper Notice of Appointment,
notwithstanding the 1st Administrator acting pro se upon confirmation of the grant.
6. Such unauthorized legal representation renders any agreements or Consents legally
inconsequential to the Estate and null and void ab initio.
ISSUES FOR DETERMINATION
a) Whether the Applicants have established grounds to vacate the Consent Orders on:
The Probate Court's lack of jurisdiction on matters pertaining to interest and use
of land.
Lack of locus standi and inadmissible evidence.
Consent Orders being res judicata contrary to Section 7 of the Civil Procedure
Act.
The 1st Administrator's lack of capacity to administer the Estate solely.
b) Whether the Applicants have established grounds for revocation of the Grant on:
Intermeddling with the Estate.
Breach of fiduciary duty.
Probate Court's Lack of Jurisdiction on Matters Pertaining to Interest and Use of Land
7. The claims of the 33 Respondents are founded on impugned sale agreements entered into
with third parties, not the deceased. Issues pertaining to interest in land should be adjudicated
by the Environment and Land Court (ELC). The Probate Court lacks the authority to determine
such disputes, as previously noted in the Court's pronouncement.
8. This Court, in the Estate of the Late John Machongo Omori [2020] eKLR, Justice A.K.
Ndungu has held that issues of demarcation of land are beyond the jurisdiction of a Probate
Court.
Lack of Locus Standi and Inadmissible Evidence
9. The 33 Respondents' claims, allegedly based on sale agreements with the beneficiaries of the
deceased, were made after the death of the deceased and before the confirmation of the
grant.
10. Such purchasers are not beneficiaries of the estate and should not be entertained in a
succession cause. The 33 Respondents thus lack locus standi to be impleaded in this Cause
to ventilate their purchasers' claims.
11. This was rightfully held in this Succession Cause by Lady Justice RVP Wendoh on 21.06.2017
while dismissing the Application by the 1st Administrator seeking to join the 33 Respondents
as beneficiaries of the Estate, directing that such claims be lodged before the ELC.
12. Similarly, Musyoka J in the Estate of Stone Kathuli Muinde (Deceased) [2016] eKLR stated:
“Such claims to ownership of alleged estate property, as between the estate and a
third party, should be resolved through the civil process in a civil suit properly
brought before a civil court in accordance with the provisions of the Civil Procedure
Act and the Civil Procedure Rules. This could mean filing suit at the magistrates’
courts, or at the Civil or Commercial Divisions of the High Court, or at the
Environment and Land Court. If a decree is obtained in such suit in favor of the
claimant, then such decree should be presented to the probate court in the
succession cause so that that court can give effect to it.”
13. The enlarged colorful photographs have zero probative value as they are inadmissible for lack
of the mandatory Certificate of Electronic Evidence under Section 106B of the Evidence
Act.
Consent Orders are Res Judicata Contrary to Section 7 of the Civil Procedure Act
14. It is undisputed that the 33 Respondents are part of the 61 purchasers who sought to be
included as beneficiaries in the Summons for Rectification of Grant dated 29.12.2016, which
were dismissed on 27.06.2017 by Lady Justice Wendoh of the Probate Court for lack of
jurisdiction.
15. By seeking demarcation for the 33 Respondents held to be without locus in the Court, the
Respondents are disregarding prior judicial decisions and disrespecting the finality of this
Court’s rulings.
16. This not only wastes judicial resources but also undermines the stability and predictability that
res judicata aims to ensure.
17. The Respondents' assertion that the Summons for Rectification of Grant dated 29.12.2016
were not heard on merit as 'Judge advice’ is false and misleading.
18. The Court’s record affirms that the Court took viva voce evidence from the 1st Administrator
pro se and pronounced itself as follows:
“[...] any dispute between a beneficiary and a purchaser should be resolved in the
ELC Court. The Application dated 29.12.2016 is declined...”
19. The Respondents are abusing the Court process by seeking to re-litigate settled matters under
the guise of demarcation. This tactic is designed to delay and complicate the resolution of the
estate’s administration, constituting a clear abuse of judicial proceedings.
20. Such manipulation of Court processes leads to inefficiencies and unjust outcomes. The
integrity of the Court’s procedures must be upheld to ensure fair and timely justice.
The 1st Administrator Lacks Capacity to Administer the Estate Solely
21. The 1st Administrator's actions, taken without legal authority from the co-administrator and
all beneficiaries, undermine the validity of the Consent Orders. Courts have consistently held
that joint administrators must act in unison.
22. In the persuasive holding in Simon Kamau Muhindi (Suing as the administrator of the
Estate of Esther Nyokabi Muhindi (deceased) v Monica Wambui Ngugi & another, HCCC
No 207 of 2013, the Court held that:
“The capacity to agitate any suit on behalf of the Estate of the deceased inheres in
the administrators duly appointed by the court. They act jointly at all times...one
administrator out of the others lacks capacity to bind the estate or any of the
administrators or file suit alone on behalf of the estate.”
Intermeddling with the Estate
23. It is undisputed that the Respondents, along with third parties, have engaged in acts of
intermeddling with the estate by entering into impugned sale agreements before the
confirmation of the Grant.
24. Section 45 of the Law of Succession Act strictly prohibits any person from intermeddling with
the free property of a deceased person. These actions are not only illegal but also undermine
the rightful distribution of the estate to the legitimate beneficiaries.
Breach of Fiduciary Duty
25. The duties of personal representatives are fiduciary in nature and are laid out in Section 83 of
the Law of Succession Act. Under Section 83(f), the administrator(s) of a deceased’s estate
have a duty to distribute the estate to the beneficiaries.
26. The Administrators have flagrantly breached their fiduciary obligations. They have altered the
distribution modalities under the Confirmed Grant without authority, engaged in
unauthorized sales, and allowed intermeddling with the estate for over a decade. These
actions contravene their duty to act in the best interests of the estate and warrant their
removal.
Counsel Lack of Authority
27. The counsel on record for the Administrators is not properly on record, the 1st Administrator
having begun acting in person as evidenced by the court record on 28.03.2017, 22.05.2017,
and 21.06.2017, wherein the 1st Administrator participated pro se during the hearing of the
Summons for Rectification of Grant dated 29.12.2016.
28. We humbly submit that, to act for the Respondents, the advocates must have been appointed
by the Respondents in Form P&A 63. As this was never done, the Applications and
subsequent Consents are a nullity and, being irregularly filed by a person not representing the
applicant, should be struck out.
CONCLUSION
29. Allowing demarcation in this context would serve to rubber-stamp illegal actions and pave
the way for unauthorized registration of land parcels. The Court must recognize this ploy for
what it is—a deceptive strategy to re-litigate issues previously settled.
30. The Probate Court should thus vacate the Consent Orders and uphold the sanctity of its earlier
decisions. The Court should also revoke the Grant of Representation issued to the
Administrators for their evident breaches and the need for proper, lawful administration of
the estate.
31. We pray that the Court allows this application in terms of the orders sought, to restore the
dignity and proper administration of justice concerning the Estate of Wangui Wakahe
(Deceased).
MOST OBLIGED YOU’RE LORDSHIP.,
DATED at Nyahururu on this 10th day of June, 2024.
-MUCHANGI. MP-.
For. MUCHANGI PATRICK & ASSOCIATES,
ADVOCATES FOR THE APPLICANTS
DRAWN & FILED BY:-
Muchangi Patrick & Associates, Advocates.
Mbaria Hse, 1stFlr, Suite 09). NYAHURURU.
(254)722 878 607 /0736 358 938.
[email protected].
TO BE SERVED UPON :
1. Njuguna Kamanga & Co Advocates,
Busara V.C Building,
NYAHURURU.
Tel : 0722 778 873
2. Njoki Muriithi & Co Advoates,
Mima Centre Building,
NYAHURURU.
Tel : 0722 598 209.
Email:
[email protected]
